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Judgment
T.S. Doabia, J.—For the disposal of this petition, facts in brief be noticed :
The petitioner a member of Kashmir Police Service was working as a Senior Superintendent of Police. According to him, he was eligible for
becoming a member of the Indian Police Service. He submits that he was wrongly deprived of his right to become member of the aforementioned
service.
The service profile of the petitioner in brief be noticed.
The petitioner submits that he was selected as a Deputy Superintendent of Police on 28.8.1956. He completed his basic training at Police Training
College, Phillaur. He came to be confirmed as Deputy Superintendent of Police. This happened in the year 1972. According to the petitioner,
while he was working in the traffic wing, his work was appreciated by his superiors. The grievance of the petitioner is that on 20th of April 1979,
26 Deputy Superintendents of Police were placed in the selection grade of Deputy Superintendent of Police. All these 26 officers were juniors to
the petitioner. The claim of the petitioner was not considered on the ground that an enquiry was pending against him. For this reliance is being
placed on a communication annexure `p/1'. This is an order by which promotions have been made. The further case of the petitioner is that when
further chances for promotion came, he was again not promoted. Some other persons came to be promoted. For this reliance is being placed on
annexure `p/2'. On 10.4.1987 another person junior to the petitioner is said to have been promoted as Superintendent of Police.
The petitioner submits that the act of initiating an enquiry by the Vigilance Department against the petitioner was not a bona fide one. This
enquiry was initiated only with a view to see that the petitioner does not earn his promotions, as and when they fell due. The further case of the
petitioner is that all these enquiries have since been concluded. Nothing has come out of these enquiries.
The petitioner submits that in the preliminary enquiry which was conducted by the Vigilance Department, it was concluded that there was no
convincing material available for granting sanction for holding any further enquiry before the Anti Corruption Tribunal. A copy of this order has
been placed on the record as Annexure `p/3'. This order came to be passed on 2.6.1979 i.e. after three months of the passing of the order
annexure `p/1'. It is in this background it is submitted that the act of the respondents in not promoting the petitioner in the year 1979 and again
ignoring his claim on 6.9.1979, cannot be said to be bona fide. The fact that the Vigilance Department on 2.6.1979 gave a categoric report that
there was no material for proceeding further in the matter is being highlighted in this regard. It is, accordingly, submitted that the petitioner should
be considered for promotion w.e.f. the date his juniors were promoted. It is stated that so far as promotions of Deputy Superintendent of Police to
the selection grade are concerned, those were to be made by the State authorities. Further promotions i.e. for induction of the petitioner into Indian
Police Force was of course to be done by the Union of India and for this the preliminary recommendation had to be made by the Union Public
Service Commission.
The respondents have filed objections.
The stand taken by them is that an enquiry was pending against the petitioner. The file was sent to the Union Public Service Commission. On the
basis of the service record, the petitioner was not considered fit for being inducted into Indian Police Service. So far as the promotions which were
to be made by the State Government, the stand taken is that the service record of the petitioner was considered by a Committee headed by the
Chief Secretary and other members. After taking into consideration the service record of the petitioner, he was not promoted.
To repeat, the petitioner is seeking promotion
(i) As Deputy Superintendent of Police in the selection grade.
(ii) To the post of Superintendent of Police which promotion was to be granted to him by the State of Jammu and Kashmir.
(iii) He wants to be inducted into Indian Police Service. This induction was to be done by the Union of India.
It be seen in paragraphs 7 and 8 of the writ petition, a categoric stand was taken by the petitioner that the preliminary report which was
submitted by the Vigilance Department, went in his favour. He has further stated that on account of the pendency of the enquiry, his case was not
considered.
The reply which has been given by the State is to the effect that the case of the petitioner was considered and on the basis of the record
available, it was not found apt to promote the petitioner. It is not the case of the State that the case of the petitioner was considered, ignoring the
factum of pendency of the enquiry against the petitioner.
The petitioner has since retired.
He submits that he has reliable information that at the time when one of the officers namely Ghulam Nabi Beg was being considered for
promotion and when promotion order visavis Mr. Beg was issued on 20.4.1979, the Chairman of the Committee did make an observation. The
said observation is said to be to the effect that claim of the petitioner cannot be considered because of the pendency of enquiry against him. It is
further stated that recommendation was made that as and when the enquiry comes to an end, the claim of the petitioner for promotion can be
considered.
It be seen that the submission which has been made by the petitioner today in Court is not part of the pleadings. As such nothing can be said
visavis the above contention. However, the fact remains that the objections filed by the State do not indicate that the claim of the petitioner was
considered without being influenced by the factum of pendency of enquiry against him. This is the overall impression when the objections filed by
the respondents are taken into consideration. If above be the position, then the petitioner is right in his submission that his case should be
considered afresh after ignoring the fact that departmental proceedings were pending against him. As a matter of fact, in all these cases sealed
cover procedure was required to be adopted. The petitioner is placing reliance on a judgment of the Supreme Court reported as Union of India v.
K.V. Janki Raman, JT 1991(3) SC 527 : 1991(3) SCT 317. The aforementioned case deals with the method to be followed, when an enquiry or
criminal trial is pending. The Supreme Court was dealing with the specific situation as was present in this case.
After having gone through the pleadings of the parties, oral submissions and the judgment of the Supreme Court of India referred to above,
following directions are given :
(i) That the case of the petitioner be now considered afresh ignoring the fact that some enquiry was pending against him.
(ii) The assertion of the petitioner that at the relevant time a specific note was incorporated to the effect that the case of the petitioner would be
considered afresh after the enquiry is over and that also with retrospective effect be taken note of. If this note exists on the file, it is required to be
given due consideration.
(iii) That the petitioner who has since retired from service if found eligible for promotions would now be entitled only to notional promotions. He
would of course be entitled to other consequential monetary benefits. This would be reflected not only in his early emoluments but also be reflected
in his pensionary benefits also.
(iv) In case the petitioner is found fit for promotion to the post of selection grade Deputy Superintendent of Police and no further promotions were
to be made by the State of Jammu and Kashmir then his case would also be forwarded to Union Public Service Commission so that there be
denovo consideration.
The petitioner submits that his juniors have been promoted as Deputy Inspectors General of Police. This be also kept in view.
Let the initial steps be initiated within one month and the final exercise be completed at State level within a period of six months. This period
would begin from the date a copy of this order along with a copy of the writ petition and annexures thereof are made available to the respondent
authorities by the petitioner.
Disposed of accordingly.